Small Claims Court
A small claims case is a legal action filed in county court to settle minor legal disputes among parties where the dollar amount involved is $8,000 or less. This amount excludes expenses associated with the case, such as costs, interest, and attorneys’ fees.
WHAT ARE YOUR RIGHTS?
A small claims action begins by filing a Statement of Claim. Small claim cases should be filed with the clerk in the appropriate county. Filing fees for small claims actions are established in the Florida Statutes and local county ordinances. The clerk of court may be able to provide information on filing fees.
WHAT DO YOU NEED TO DO?
These are the general steps to how to file a civil lawsuit in County Court.
This is known as the “Venue.”
The law gives the person or company that files a lawsuit the right to file in any one of the following places:
- Where the contract was entered into;
- If the suit is on an unsecured promissory note, where the note is signed or where the maker resides;
- If the suit is to recover property or to foreclose a lien, where the property is located;
- Where the event giving rise to the suit occurred;
- Where any one or more of the defendants sued reside;
- Any location agreed to in a contract; or
- In an action for money due, if there is no agreement as to where a suit may be filed, where payment is to be made.
A statement of claim is a court document that sets out how much or what the other party claims you owe them and why they are making the claim. The statement of claim starts a court case. The person who starts the case is called the “plaintiff”; the person being sued is called the “defendant.”
The Statement of Claim is filed at the Clerk’s office. A filing fee is required and paid with the clerk. You may file an Application for Indigent Status to determine whether the clerk will waive this fee. The application will ask for information about your financial status.
A party to a lawsuit must give appropriate notice of initial legal action to another party, such as a defendant. Simply put, a defendant has the right to know whether he or she is being sued. That person must be given the opportunity to respond to the proceeding before the court. If proper service is not completed, your case will not move forward.
A copy of the documents must be “served” on the defendant through the sheriff or private process server. Service of process is the legal term for delivery of copies of legal documents associated with a lawsuit. Delivery is usually made by personal delivery to the defendant or other person to whom the documents are directed.
Upon filing the Statement of Claim, a PTC date will be set. You must attend this hearing or the case will be dismissed. At this hearing, the parties will be given a chance to settle the case through a process called mediation. If the case is not settled and the defendant does not admit to owing the debt, the case is set for the final hearing.
At the Final Hearing, you will need all of your witnesses or documents to help prove your case. The judge may require that you tell the opposing side of any witnesses or documents that you intend to use at the Final Hearing.
If you win your lawsuit, you will need to take steps to collect the money the court has awarded to you through the court case.
The next sections will explain the general steps you will need to take if you want to collect on a judgment.
The first step in enforcing a judgment is to investigate the collectible assets of the opposing party against whom you obtained a judgment (the “debtor”).
The law provides the successful party in a lawsuit (the “creditor”) with certain procedural tools to gain information from the debtor regarding his or her collectible assets. This process is known as “discovery in aid of execution.”
For example, a creditor may take the deposition of the debtor or propound interrogatories, which are questions to the debtor. The debtor must provide sworn answers to the questions. If they fail to cooperate, the creditor may move the court to compel them to attend a deposition or answer interrogatories. The court can impose fines or jail time in egregious circumstances.
The next step is to execute the judgment upon the debtor’s collectible assets.
One simple and effective means of doing this is to record a certified copy of the judgment in the official records of the county where the real property is located, causing the judgment to become a lien upon the property in certain circumstances.
With the lien in place, you can then levy and execute upon the real property to satisfy the judgment amount (subject to any superior liens upon the property).
This method is not available if the real property is homestead property of the judgment debtor. Article X, Section 4, of the Florida Constitution exempts homestead property from judgment liens or forced sale.
It is important to note that the homestead status of property for tax purposes does not determine whether the property is considered homestead for purposes of the constitutional exemption against creditors.
Additionally, it is usually unrealistic to seek a lien on a property that is subject to a mortgage that exceeds the value of the property or other superior liens that may reduce the proceeds available from the sale of the property.
You can also seek certain other assets to satisfy a judgment:
- Garnishing wages or bank accounts. This option is not available if the funds to be garnished qualify as the wages or salary of a head of household and the debtor has not consented in writing to waive the head of household exemption.
- Attaching liens to personal property. Personal property of the judgment debtor may be executed upon subject to the debtor’s ability to claim an exemption of up to $4,000 if he or she is not already claiming a homestead exemption. Florida Statute § 222.25 (2015). A judgment debtor may claim an exemption of up to $1,000 equity in a personal motor vehicle.
Please note that the above options may be subject to the applicability of additional exemptions under state and federal law.
WHAT TO CONSIDER BEFORE TAKING ACTION?
You must know the name and address of the person you want to sue, or you will not be able to serve the Statement of Claim.
Determine whether the person you want to sue has assets that are not exempt from collection. If all their assets are protected, you will not be able to collect anything from that person, even if you win your case.